SIDEBAR; Relying on the Notepad in the Electronic Age

By ADAM LIPTAK

Published: February 12, 2007

I. Lewis Libby Jr. is charged with lying to federal agents, but no one knows precisely what he said. The jury hearing his case must rely on an F.B.I. agent's recollection, based on notes taken at the time.

Mr. Libby is also charged with lying to a grand jury. That testimony was tape-recorded, and jurors spent eight hours last week assessing every word, inflection, pause and sigh.

Why is the Federal Bureau of Investigation still using Sherlock Holmes methods in the YouTube era?

More than 500 police departments in all 50 states now make electronic recordings of at least some interrogations, often videotaping them. At the F.B.I., by contrast, an agent cannot turn on a tape recorder without first getting a supervisor's permission.

The default method of preserving the statements of witnesses and suspects at our nation's most important law enforcement agency is known as ''scribble then type.''

Deborah S. Bond, the F.B.I. agent who testified about two interviews with Mr. Libby, said her notes were pretty good but not perfect.

''I can't take a verbatim statement,'' Ms. Bond testified. ''You take notes as quickly as you can and as accurately as you can.''

Here are some other reasons to favor recordings:

They eliminate disputes about whether Miranda warnings were given and whether confessions were authentic.

They allow the investigators to engage people in conversation rather than worry about stenography. They are an excellent training device.

Thomas P. Sullivan, a former United States attorney in Chicago and a bit of a crusader on this point, says local law enforcement agencies that have adopted electronic recording cannot imagine life without it.

''I can say without exaggeration -- it's unanimous -- that they all love it,'' Mr. Sullivan said. ''They hate it until they do it, and then they love it.''

Judges seem to feel the same way. ''I find it ironic,'' Judge Stephen P. Friot of Federal District Court in Oklahoma wrote in a letter to Mr. Sullivan, ''that if the cost of repairing a car is at stake in a civil case, the defendant's account of the matter is meticulously recorded'' by a court reporter in a deposition. ''But agencies with ample opportunity and resources to do so fail to record statements where liberty and perhaps even life are at stake.''

A decision in December by the Iowa Supreme Court illustrates the point. The court was considering a relatively difficult question: Did a 17-year-old immigrant from Bosnia understand what he was saying when he waived his Miranda rights and confessed to burglary and robbery?

But there was a videotape. It showed that the defendant, Arif Hajtic, spoke English well. ''He showed no reluctance to ask questions if he did not understand,'' Justice Jerry L. Larson wrote for the unanimous court. ''When the officer asked a question confusing to Hajtic, he asked the officer to clarify it, and the officer did so.''

The court ruled that Mr. Hajtic's confession was authentic, and it affirmed his conviction. The case, the court concluded, ''illustrates the value of electronic recording, particularly videotaping, of custodial interrogations.''

The F.B.I. reviewed its policy about a year ago, and decided to keep it. Valerie E. Caproni, the bureau's general counsel, defended the decision, saying that its specialized work required sensitive case-by-case judgments about when recording was appropriate. The requirement that field agents get approval, Ms. Caproni added, should not be interpreted to mean that recordings are disfavored.

''There are lots of different factors that play into this,'' she said.

First, she said, the policy has not caused many problems for prosecutors. Then there is money. Making transcripts of recordings can be expensive and burdensome, Ms. Caproni said, especially when translators are involved. ''There's a huge fiscal impact to it,'' Ms. Caproni said. On the other hand, the F.B.I.'s $6 billion budget dwarfs those of the hundreds of police departments that have embraced routine taping.

Most important, Ms. Caproni said, suspects may clam up if they know they are being recorded. ''What you really want to do,'' she said, ''is have them spend time talking to you. It's an art, not a science.''

But those objections seemed to crumble at the Libby trial. Mr. Libby was interviewed with his lawyer, and it is hard to imagine that the presence of a tape recorder would have changed what he said. And it seems only fair to make the most accurate record possible of statements that could send a man to prison.

Ms. Bond, the F.B.I. agent, was repeatedly questioned about gaps in her notes.

''There might be some mistakes,'' she said, ''because we're all human.''

A tape recorder is not human. A really good one, according to a 2005 report of a committee appointed by the New Jersey Supreme Court, costs $300.